Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11405
SECOND DIVISION Docket No. 11070
88-2-85-2-201
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Birmingham Southern Railroad Company
Dispute: Claim of Employes:
1. That the Birmingham Southern Railroad Company, hereinafter referred to as the Carrier, violated the controlling Agreement when it upgraded
Cayman Raymond R. Misso ahead of other Carmen Trainees at Birmingham, Alabama
on June 21, 1984.
2. And accordingly, the Carrier should be ordered to compensate
Cayman Trainees Robert D. Love and Willie Lee Jones, hereinafter referred to
as the Claimants, the difference between Cayman Trainees rate and Caymans rate
of pay commencing on June 21, 1984 and continuing as long as violation
continues, as the result of said violation.
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employee involved in this
dispute are respectively carrier and employee within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On June 21, 1984, Carrier hired Raymond Misso as an upgraded Cayman
at its Birmingham, Alabama facility, without first requiring him to go through
its Cayman Trainee program. At the time Misso was hired, Claimants both were
working as Cayman Trainees at Birmingham. The Organization thereafter filed a
Claim on Claimants' behalf, challenging Misso's hiring as an upgraded Cayman
and Carrier's failure to upgrade Claimants ahead of Misso.
The Organization contends that Carrier's action violated Appendix A,
Section 2 of the controlling Agreement by arbitrarily upgrading Misso ahead of
Claimants. Appendix A, Section 2 provides:
Form 1 Award No. 11405
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88-2-85-2-201
"UPGRADING:
(A) As the Carrier determines it necessary,
and for the purpose of giving Cayman Trainees
experience as Carmen, the Carrier may upgrade, in
order of their entry into the Cayman Trainee
Program, Cayman Trainees to perform Cayman's work.
Such Upgraded Cayman may work independently on
Carmen's work (including cutting and welding) and
while in such upgraded status will be paid the rate
of pay for work performed, as provided in the
current Cayman's Agreement.
(B) A Cayman Trainee upgraded to Cayman will
not establish seniority as a Cayman until he is
qualified and promoted as outlined under Requirements for promotion to Cayman.
(C) Cayman Trainees working as Upgraded Carmen will be required to complete prescribed offthe-job courses as if they were in Cayman Trainee -
status. Failure of such an upgraded employee to
complete his off-job training satisfactorily and on
a timely basis shall be reason for this reversion
to Cayman Trainee status, regardless of seniority,
until either the training is brought up to a satisfactory and timely basis or until he is terminated
as an employee."
The Organization contends that this Section governs how an employee will be
upgraded. The Organization argues that the Agreement does not allow Carrier
to hire an employee and upgrade that employee to Cayman (mechanic) status
without first placing the employee in the training program for completion of
the required on and off-job training; the only exceptions to this Rule are
those included in sub-paragraph (C).
The Organization points out that Carrier admittedly hired Misso as an
upgraded Cayman, and Misao never entered the training program. The Organization argues that under sub-paragraph (C), Carrier is obligated to require any
new employee, who is not a bona fide Cayman, to enter the training program;
the employee then would be upgraded in accordance with date of entry into the
training program. The Organization further argues that Article 57, Section 3
of the Agreement,, which provides:
"The term 'upgraded mechanics' as used in this
Article is intended to apply to employees hired in
an upgraded status without first establishing
seniority as helper or apprentice, as well as those
upgraded after entering service as a helper or
apprentice."
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88-2-85-2-201
does not apply to this dispute because Article 57 deals with entry rates of
pay. The Organization asserts that Article 57 has nothing to do with the
actual upgrading of employees in the training program.
The Organization asserts that this dispute arose because Carrier
hired and upgraded ahead of employees already in the training program with
entry dates prior to Misso's entry date, and because Carrier did not require
Misso to enter the training program. The Organization argues that Carrier has
failed to prove that it had the right to take such action. The Organization
denies that it agreed to Carrier's action; Carrier failed to produce any
evidence that such an agreement ever was reached. Moreover, even if such an
agreement had been made, the agreement would not have been in accordance with
the clear and unambiguous terms of Appendix A. The Organization contends that
based on the record and the cited rules, Carrier violated the controlling
Agreement by arbitrarily upgrading Misso ahead of the Claimants; the Claim
therefore should be sustained.
Carrier argues that although it is a departure from past practice on
the property, Carrier had the contractual right to hire Misso as an upgraded
Mechanic under the provisions of Article 57. Carrier asserts that it met with
the Organization's then-General Chairman to discuss this action; the General
Chairman agreed with Carrier's interpretation of Article 57. Carrier contends
that the current General Chairman's attempt to overturn this agreement through
the grievance procedure is unfounded. Carrier argues that the Organization
may attempt such a change only through seeking a separate agreement or through
the procedures set forth in the Railway Labor Act. Moreover, this Board has
upheld the parties' joint interpretation of an agreement. Carrier argues that
in this matter, the contract terms are clear and concise, and the parties'
joint interpretation was reached by the agreement of individuals who had
authority to make such an agreement. Carrier therefore contends that this
Board is without power to reinterpret the controlling Agreement. Moreover,
the clear language of Article 57 supports Carrier's employment of upgraded
mechanics.
Carrier next argues that it did not violate Appendix A, Section 2 of
the controlling Agreement. Carrier contends that this provision does not
apply because Misso never entered Carrier's trainee program. Carrier therefore contends that the Claim is without merit and should be denied.
This Board has reviewed the evidence in this case, and we find that
Article 57, Section 3, of the Agreement allows the Carrier to hire "upgraded
mechanics," who are "employees hired in an upgraded status without first
establishing seniority as helper or apprentice . . . ."
It is obvious, from the evidence, that the Carrier usually hires in
its Carmen as apprentices and allows them to be upgraded through the jobtraining process. However, nothing precludes the Carrier from hiring in
upgraded mechanics; and, as a matter of fact, the Agreement provides for it.
Hence, the Claim must be denied.
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88-2-85-2-201
A W A R D ,rr
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. e - Executive Secretary
Dated at Chicago, Illinois, this 6th day of January 1988.